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Alfredo Estrada, Renato T. Canilang and Manuel C. Lim , petitioners , vs.CA and Bacnotan Cement Corporation (BCC), respondents .(G.R. No. 137862 | November 11, 2004)

AUSTRIA-MARTINEZ, J.:

Before this Court is a petition for review on certiorari of the decision[1] of theCourt of Appeals in CA-G.R. SP No. 44324, promulgated on April 6, 1998,and the resolution[2] dated February 24, 1999 denying petitioners motion for reconsideration.

The facts are as follows:

Alfredo Estrada, Renato T. Canilang and Manuel C. Lim, as concernedcitizens and taxpayers, filed on July 31, 1996, before the Regional Trial Court(RTC) of Olongapo City, a complaint for Injunction and Damages with Prayer for Preliminary Injunction and Temporary Restraining Order against BacnotanCement Corp. (BCC), Wawandue Fishing Port, Inc. (WFPI), Jeffrey KhongHun as President of WFPI, Manuel Molina as Mayor of Subic, Zambales, andRicardo Serrano as Regional Director of the Department of Environment and

Natural Resources (DENR).

The complaint alleges that: WFPI and the Municipality of Subic entered intoan illegal lease contract, which in turn became the basis of a sub-lease in favor of BCC; the sub-lease between WFPI and BCC is a violation of the first lease

because the cement plant, which BCC intended to operate in Wawandue,Subic, Zambales, is not related to the fish port business of WFPI; and BCCscement plant is a nuisance because it will cause pollution, endanger the health,life and limb of the residents and deprive them of the full use and enjoymentof their properties. The plaintiffs prayed that an order be issued: to restrainand prohibit BCC from opening, commissioning, or otherwise operating itscement plant; and to require the defendants to jointly and solidarily pay the

plaintiffs P205,000.00 by way of actual, moral and exemplary damages andattorneys fees.[3]

Defendants WFPI/Khong Hun and BCC filed separate motions to dismiss, both alleging that the complaint states no cause of action. BCC, in its motion,added that: the plaintiffs failed to exhaust administrative remedies beforegoing to court; that the complaint was premature; and that the RTC has no

jurisdiction on the matter. Respondent Serrano of the DENR also filed amotion to dismiss stating that there was no cause of action insofar as he isconcerned since there was nothing in the complaint that shows any derelictionof duty on his part.[4]

On December 6, 1996, Judge Eliodoro G. Ubiadas of RTC Olongapo City,

Branch 72, issued an order denying respondents motions to dismiss andgranting the prayer for a writ of preliminary injunction.[5] Pertinent portionsof the order read as follows:

The Court notes that the powers vested by law under Executive Order 192,Republic Act 3931 and Presidential Decree 984 are regulatory merely and for the purpose of determining whether pollution exists.

However, under the laws above-mentioned, the powers granted to the DENR thru the Pollution Adjudication Board did not expressly exclude the Courtswhich under the law are empowered to try both questions of facts and law todetermine whether pollution which maybe nuisance per se or by accidents(sic) exist or likely to exist. Under the Constitution, the courts are imbued theinherent power of general jurisdiction to resolve these issues. While it maybe(sic) true that petitioners might have first to seek relief thru the DENRsPollution Adjudication Board a resort to the remedy provided under thePollution Adjudication Board is rendered useless and ineffective in the light of

the urgency that the said pollution be restrained outright in lieu of theimpending risk described in the petition. It will be noted that the DENR didnot have the power either in Executive Order 192, Republic Act 3931 andPresidential Decree 984 to issue a writ of injunction. The argument thereforefor the exhaustion of administrative remedy and lack of jurisdiction does notwarrant the dismissal of this petition against Bacnotan Cement Corporation.[6]

Respondents motions for reconsideration were likewise denied by the trialcourt in an order dated May 13, 1997.[7]

Respondent BCC then went to the Court of Appeals on a petition for certiorariand prohibition with preliminary injunction and/or temporary restraining order seeking to reverse and set aside the orders dated December 6, 1996 and May13, 1997 as well as to lift the writ of preliminary injunction dated December 11, 1996.

On April 6, 1998, the Court of Appeals rendered its decision, granting BCCs petition, thus:

WHEREFORE, in the light of the foregoing disquisitions, the instant petitionfor certiorari is GRANTED. The assailed Orders dated December 6, 1996 andMay 13, 1997 are hereby SET ASIDE. The writ of injunction issued by the

public respondent under date of December 11, 1996 is forthwith, LIFTED andthe Complaint insofar as petitioner BCC is concerned is ordered forthwithDISMISSED. No costs.

SO ORDERED.[8]

It reasoned that:

FIRSTLY. We find that the denial of said Motion to Dismiss by the Court aquo, was a grave abuse of discretion because of the doctrine of AdministrativeRemedy which requires that where an administrative remedy is provided bystatute, relief must be sought administratively first before the Court will takeaction thereon. As ruled by the Supreme Court in the case of Abe Abe, et al.vs. Manta (90 SCRA 524). When an adequate remedy may be had within theExecutive Department of the government but nevertheless a litigant fails or refuses to avail himself of the same, the Judiciary shall decline to interfere.This traditional attitude of the Court is based not only on respect for partylitigants but also on respect for a co-equal office in the government. In fine,our Supreme Court has categorically explained in Aquino vs. Mariano (129SCRA 209) that whenever, there is an available Administrative Remedy

provided by law, no judicial recourse can be made until such remedy has beenavailed of and exhausted for three (3) reasons that: (1) Resort to court maybeunnecessary if administrative remedy is available; (2) Administrative Agencymay be given a chance to correct itself; and (3) The principle of Amity andConvenience requires that no court can act until administrative processes arecompleted. Commissioner of Customs vs. Navarro (77 SCRA 264).

SECONDLY, it is a well-settled rule that the jurisdiction of the Regional TrialCourt is general in character, referring to the existence of nuisance under the

provision of Article 694 of the New Civil Code. On the other hand, theDepartment of Environment and Natural Resources, through the PollutionAdjudication Board (PAB) under R.A. 3931 as amended by P.D. 984,

prescribes the Abatement of Pollution. In fine, when it comes to nuisance, theCourt has general jurisdiction under the New Civil Code. But when it comesto pollution which is specific, the administrative body like the DENR has

jurisdiction. Clearly, nuisance is general or broader in concept while pollutionis specific. Following the rule that the specific issue of pollution, which isunder the jurisdiction of DENR prevails over the general issue of nuisance

which is under the jurisdiction of the RTC (Lagman vs. City of Manila, 17SCRA 579), there is no doubt that the DENR and not the Court should have jurisdiction. Hence, the motion to dismiss filed by petitioner should have been GRANTED by the Court a quo. Since it has no jurisdiction over thesubject matter. Its denial by public respondent was therefore a grave abuse of discretion, which is correctible by certiorari.

THIRDLY. We should not lose sight of the fact that the authority to constructin this case is necessarily required prior to the actual construction of

petitioners cement bulk terminal while the permit to operate likewise isrequired before the petitioners cement bulk terminal commences itsoperation. In this case, the petitioner, at the time, had only the authority toconstruct, pursuant to a valid contract between the WFPI and the petitioner BCC, approved by the Sangguniang Bayan of Subic and SangguniangPanlalawigan of Zambales and pursuant to the requisite of DENR. Again, itshould be remembered that, at the time, petitioner did not yet have the permitto operate (which should properly be made only after a factual determination

of the levels of pollution by the DENR). Hence, the injunction issued in thiscase is premature and should not have been issued at all by public respondent.

FOURTHLY. The effect of the writ of injunction enjoining petitioner fromoperating the cement bulk terminal (Order of December 6, 1996) and the

public respondents refusal to defer the proceedings below, virtually preemptthe DENR from making such determination, nay even the authority to issuethe permit to operate is likewise preempted. How can we therefore enjoinoperation before the issuance of the permit to operate? It is also a settled rulethat the remedy of injunction is not proper where an administrative remedy isavailable. The permit to operate may not even be issued, at all, by the DENR (Buayan Cattle Co. Inc., vs. Quintillan, 128 SCRA 276).

Evidently, the writ of injunction issued in this case, as We view it, is premature. In fact, by issuing the Order of Dec. 6, 1996, the publicrespondent wrestled the authority from the DENR to determine whether the


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cement bulk terminal will cause pollution or not, or whether the pollution mayonly be on acceptable level as to justify the issuance of the permit to operate.

While conceding that prior resort should be made to the DENR, therespondent Judge proceeded to take the contrary stand, following the privaterespondents contention that the doctrine of exhaustion of administrativeremedies are [sic] inapplicable, since it would cause irreparable injury if

private respondents should avail of administrative step before taking Courtaction.

We do not agree.

The respondents contention is clearly baseless and highly speculative becausehow can it possibly produce irreparable injury before the actual operationsince petitioner has not yet been issued permit to operate. Besides, We findno evidence shown in the complaint or alleged therein that will support the

presence of pollution and which could properly be the subject of injunction.

Finally, it is interesting to note that the complaint filed by the privaterespondents has no prayer for preliminary injunction (it was not asked, whythen should it be given?). Furthermore, the Sublease Agreement having been

partly executed, it could no longer be enjoined.

By and large, the lower courts denial of petitioners motion to dismiss isundoubtedly a grave abuse of discretion amounting to lack of jurisdiction.[9]

The Court of Appeals denied petitioners motion for reconsideration onFebruary 24, 1999.[10] Hence the present petition alleging that:

I

. . . THE HONORABLE COURT OF APPEALS HAD CLEARLYDEPARTED FROM THE ESTABLISHED JURISPRUDENCEENUNCIATED BY THIS HONORABLE COURT WHEN IT RULEDTHAT THE HEREIN PETITIONERS FAILED TO EXHAUSTADMINISTRATIVE REMEDIES AVAILABLE TO THEM BEFORE THEDEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES(DENR) POLLUTION ADJUDICATION BOARD (PAB); and that

II

THE COURT OF APPEALS ALSO GROSSLY ERRED IN RULING THATTHE REGIONAL TRIAL COURT OF OLONGAPO CITY, BRANCH 72HAS NO JURISDICTION OVER THE ISSUE OF POLLUTION.[11]

Petitioners argue that: prior resort to an administrative agency is futile andunnecessary since great and irreparable injury would ensue if the cementrepacking plant is allowed to operate in Wawandue, Subic, Zambales; only thecourt can grant them speedy, effective and immediate relief since the DENR-Pollution Adjudication Board (PAB) has no authority to issue the needed writof injunction prayed for by petitioners; E.O. No. 192,[12] R.A. No. 3931[13]or P.D. No. 984[14] does not expressly exclude the power and authority of theRTC to try both questions of fact and of law relative to the determination of the existence of pollution arising from the operation of respondents cementrepacking plant either as a nuisance per se or a nuisance per accidens; and thelower court under the Constitution is imbued with the inherent power and

jurisdiction to resolve the issue of pollution.[15]

In its Comment, BCC contends that: the instant petition should be dismissed because it is not accompanied by a copy of the petition in CA G.R. SP No.44324, which violates Rule 45, Sec. 4 of the Rules of Court requiring that the

petition be accompanied by relevant pleadings;[16] the Court of Appeals

correctly held that the jurisdiction to determine the issue of pollution is lodged primarily with the DENR and not with the RTC; under P.D. No. 984, the task of determining the existence of pollution was bestowed on the NationalPollution Control Commission (NPCC), the powers of which were assumed

by the DENR under E.O. No. 192; the jurisdiction of the trial courts anentabatement of nuisance in general cannot prevail over the specific, specializedand technical jurisdiction of the DENR-PAB; under the doctrine of exhaustionof administrative remedies, where competence to determine the same issue is

placed in the trial court and an administrative body and the issue involves aspecialized and technical matter, relief should first be sought before theadministrative body prior to instituting suit before the regular courts; the relief sought by the petitioners to prevent the supposedly injurious operation of BCCs cement bulk terminal can be effectively obtained from the DENR,which, under P.D. No. 984, has the authority to grant, modify and revoke

permits, and to issue orders for the abatement of pollution and imposemandatory pollution control measures for compliance;[17] since the BCC only

has an authority to construct and not yet permit to operate at the time of the filing of the complaint, the writ of injunction issued by the trial court

preempted the DENR from making the determination of whether or not BCCshould be allowed to operate; the complaint was properly dismissed since

petitioners have no legal capacity to bring a suit for abatement of nuisance;and the right invoked by petitioners is abstract and is not sufficient to confer locus standi.[18]

In their Reply, petitioners reiterated their arguments and added that they havefully complied with the requirements of Rule 45.[19]

The principal issue that needs to be resolved is whether or not the instant case

falls under the exceptional cases where prior resort to administrative agenciesneed not be made before going to court.

We answer in the negative.

The doctrine of exhaustion of administrative remedies requires that resort befirst made with the administrative authorities in the resolution of a controversyfalling under their jurisdiction before the same may be elevated to a court of

justice for review.[20] If a remedy within the administrative machinery is stillavailable, with a procedure pursuant to law for an administrative officer todecide the controversy, a party should first exhaust such remedy before goingto court. A premature invocation of a courts intervention renders thecomplaint without cause of action and dismissible on such ground.[21]

The reason for this is that prior availment of administrative remedy entailslesser expenses and provides for a speedier disposition of controversies.Comity and convenience also impel courts of justice to shy away from adispute until the system of administrative redress has been completed andcomplied with.[22]

As we explained in Gonzales vs. Court of Appeals,[23]

The thrust of the rule on exhaustion of administrative remedies is that thecourts must allow the administrative agencies to carry out their functions anddischarge their responsibilities within the specialized areas of their respectivecompetence. It is presumed that an administrative agency, if afforded anopportunity to pass upon a matter, will decide the same correctly, or correctany previous error committed in its forum. Furthermore, reasons of law,comity and convenience prevent the courts from entertaining cases proper for determination by administrative agencies. Hence, premature resort to thecourts necessarily becomes fatal to the cause of action of the petitioner.[24]

While the doctrine of exhaustion of administrative remedies is flexible and

may be disregarded in certain instances, such as:(1) when there is a violation of due process,(2) when the issue involved is purely a legal question,(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,(4) when there is estoppel on the part of the administrative agencyconcerned,(5) when there is irreparable injury,(6) when the respondent is a department secretary whose acts as an alter egoof the President bears [sic] the implied and assumed approval of the latter,(7) when to require exhaustion of administrative remedies would beunreasonable,(8) when it would amount to a nullification of a claim,(9) when the subject matter is a private land in land case proceedings,(10) when the rule does not provide a plain, speedy and adequate remedy,(11) when there are circumstances indicating the urgency of judicial

intervention,(12) when no administrative review is provided by law,(13) where the rule of qualified political agency applies, and(14) when the issue of non-exhaustion of administrative remedies has beenrendered moot.[25]we find, however, that the instant case does not fall under any of therecognized exceptional circumstances.

Petitioners claim that their action before the trial court, without going to theDENR first, is justified because they are in danger of suffering grave andirreparable injury from the operation of respondents cement repacking plantand the DENR does not have the power to grant them the relief they are

praying for.

We do not agree.


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Republic Act No. 3931, An Act Creating the National Water and Air PollutionControl Commission, was passed on June 18, 1964 to maintain reasonablestandards of purity for the waters and air of the country with their utilizationfor domestic, agricultural, industrial and other legitimate purposes. It createdthe NPCC which had the power, to issue, renew, or deny permits, for the

prevention and abatement of pollution.[26]

In 1976, Presidential Decree No. 984 was enacted to strengthen the NPCCgiving it, among others, the following:

Sec. 6. Powers and Functions . . .

. . .

(e) Issue orders or decisions to compel compliance with the provisions of this Decree and its implementing rules and regulations only after proper noticeand hearing.

(f) Make, alter or modify orders requiring the discontinuance of pollutionspecifying the conditions and the time within which such discontinuance must

be accomplished.

(g) Issue, renew, or deny permits, under such conditions as it maydetermine to be reasonable, for the prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the installation or operation of sewage works and industrial disposal system or parts thereof

(j) serve as arbitrator for the determination of reparations, or restitution of the damages and losses resulting from pollution.

P.D. No. 984 also empowered the commission to issue ex parte ordersdirecting the discontinuance or temporary suspension or cessation of operationof an establishment or person generating sewage or wastes without thenecessity of prior public hearing whenever it finds a prima facie evidence thatthe discharged sewage or wastes are of immediate threat to life, public health,safety or welfare, or to animal or plant life, or exceed the allowable standardsset by the commission.[27]

In 1987, Executive Order No. 192 was passed, reorganizing the DENR. Ittransferred the power of the NPCC to the Environmental ManagementBureau[28] and created the PAB, under the Office of the Secretary, whichassumed the powers and functions of the NPCC with respect to theadjudication of pollution cases under R.A. No. 3931 and P.D. No. 984.[29]

In Pollution Adjudication Board vs. Court of Appeals,[30] we stated that thePAB is the very agency of the government with the task of determiningwhether the effluents of a particular industrial establishment comply with or violate applicable anti-pollution statutory and regulatory provisions.[31] Wealso recognized its power to issue, ex parte, cease and desist orders, thus:

. . . under . . . Section 7(a) of P.D. No. 984, an ex parte cease and desist order may be issued by the (PAB) (a) whenever the wastes discharged by anestablishment pose an immediate threat to life, public health, safety or welfare, or to animal or plant life, or (b) whenever such discharges or wastesexceed the allowable standards set by the [NPCC]. . . . [I]t is not essentialthat the Board prove that an immediate threat to life, public health, safety or welfare, or to animal or plant life exists before an ex parte cease and desistorder may be issued. It is enough if the Board finds that the wastes dischargeddo exceed the allowable standards set by the [NPCC]. In respect of discharges of wastes as to which allowable standards have been set by the

Commission, the Board may issue an ex parte cease and desist order whenthere is prima-facie evidence of an establishment exceeding such allowablestandards. Where, however, the effluents or discharges have not yet been thesubject matter of allowable standards set by the Commission, then the Boardmay act on an ex parte basis when it finds at least prima facie proof that thewastewater or material involved presents an immediate threat to life, publichealth, safety or welfare or to animal or plant life. . . .

. . .

Ex parte cease and desist orders are permitted by law and regulations insituations like that here presented precisely because stopping continuousdischarge of pollutive and untreated effluents into the rivers and other inlandwaters of the Philippines cannot be made to wait until protracted litigationover the ultimate correctness or propriety of such orders has run its fullcourse, including multiple and sequential appeals such as those which Solar

has taken, which of course may take several years. The relevant pollutioncontrol statute and implementing regulations were enacted and promulgated inthe exercise of that pervasive, sovereign power to protect the safety, health,and general welfare and comfort of the public, as well as the protection of

plant and animal life, commonly designated as the police power. It is aconstitutional commonplace that the ordinary requirements of procedural due

process yield to the necessities of protecting vital public interests like thosehere involved, through the exercise of police power. . . .[32]

In Laguna Lake Development Authority vs. Court of Appeals,[33] we also pronounced that:

The matter of determining whether there ispollution of the environment thatrequires control, if not prohibition, of the operation of a businessestablishment is essentially addressed to the Environmental ManagementBureau (EMB) of the DENR which, by virtue of Section 16 of ExecutiveOrder No. 192, series of 1987 has assumed the powers and functions of thedefunct National Pollution Control Commission created under Republic Act

No. 3931. Under said Executive Order, a Pollution Adjudication Board(PAB) under the Office of the DENR Secretary now assumes the powers andfunctions of the National Pollution Control Commission with respect toadjudication of pollution cases.

As a general rule, the adjudication of pollution cases generally pertains to thePollution Adjudication Board (PAB), except in cases where the special law

provides for another forum.[34]

Clearly, the claim of petitioners that their immediate recourse to the regular courts is justified because the DENR is powerless to grant them proper relief is without basis.

The Court of Appeals correctly found that the petitioners failed to exhaustadministrative remedies before going to court which renders their complaintdismissible on the ground of lack of cause of action.

WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

Callejo, Sr., and Chico-Nazario, JJ., concur.Puno, (Chairman), J., on official leave.Tinga, J., on leave.


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Pollution Adjudication Board , petitioner vs. CA and Solar TextileFinishing Corporation , respondents .(G.R. No. 93891 | March 11, 1991 )

FELICIANO, J.:

Petitioner Pollution Adjudication Board ("Board") asks us to review theDecision and Resolution promulgated on 7 February 1990 and 10 May 1990,respectively, by the Court of Appeals in C.A.-G R. No. SP 18821 entitled"Solar Textile Finishing Corporation v. Pollution Adjudication Board." In thatDecision and Resolution, the Court of Appeals reversed an order of theRegional Trial Court, Quezon City, Branch 77, in Civil Case No. Q-89-2287dismissing private respondent Solar Textile Finishing Corporation's ("Solar")

petition for certiorari and remanded the case to the trial court for further proceedings.

On 22 September 1988, petitioner Board issued an ex parte Order directingSolar immediately to cease and desist from utilizing its wastewater pollutionsource installations which were discharging untreated wastewater directly intoa canal leading to the adjacent Tullahan-Tinejeros River. The Order signed byHon. Fulgencio Factoran, Jr., as Board Chairman, reads in full as follows:

Respondent, Solar Textile Finishing Corporation with plant and place of business at 999 General Pascual Avenue, Malabon, Metro Manila is involvedin bleaching, rinsing and dyeing textiles with wastewater of about 30 gpm.

being directly discharged untreated into the sewer. Based on findings in theInspections conducted on 05 November 1986 and 15 November 1986, thevolume of untreated wastewater discharged in the final out fall outside of the

plant's compound was even greater. The result of inspection conducted on 06September 1988 showed that respondent's Wastewater Treatment Plant wasnoted unoperational and the combined wastewater generated from itsoperation was about 30 gallons per minute and 80% of the wastewater was

being directly discharged into a drainage canal leading to the Tullahan-Tinejeros River by means of a by-pass and the remaining 20% was channelledinto the plant's existing Wastewater Treatment Plant (WTP). Result of theanalyses of the sample taken from the by-pass showed that the wastewater ishighly pollutive in terms of Color units, BOD and Suspended Solids, amongothers. These acts of respondent in spite of directives to comply with therequirements are clearly in violation of Section 8 of Presidential Decree No.984 and Section 103 of its Implementing Rules and Regulations and the 1982Effluent Regulations.

WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of itsImplementing Rules and Regulations, respondent is hereby ordered to ceaseand desist from utilizing its wastewater pollution source installation anddischarging its untreated wastewater directly into the canal leading to theTullahan-Tinejeros River effective immediately upon receipt hereof and untilsuch time when it has fully complied with all the requirements and untilfurther orders from this Board.

SO ORDERED. 1

We note that the above Order was based on findings of several inspections of Solar's plant:

a. inspections conducted on 5 November 1986 and 12 November 1986 by the National Pollution Control Commission ("NPCC"), the

predecessor of the Board ; 2 and

b. the inspection conducted on 6 September 1988 by the Departmentof Environment and Natural Resources ("DENR").

The findings of these two (2) inspections were that Solar's wastewater treatment plant was non-operational and that its plant generated about 30gallons per minute of wastewater, 80% of which was being directlydischarged into a drainage canal leading to the Tullahan-Tinejeros River. Theremaining 20% of the wastewater was being channeled through Solar's non-operational wastewater treatment plant. Chemical analysis of samples of Solar's effluents showed the presence of pollutants on a level in excess of what was permissible under P.D. No. 984 and its Implementing Regulations.

A copy of the above Order was received by Solar on 26 September 1988. AWrit of Execution issued by the Board was received by Solar on 31 March1989.

Meantime, Solar filed a motion for reconsideration/appeal with prayer for stayof execution of the Order dated 22 September 1988. Acting on this motion,

the Board issued an Order dated 24 April 1989 allowing Solar to operatetemporarily, to enable the Board to conduct another inspection and evaluationof Solar's wastewater treatment facilities. In the same Order, the Boarddirected the Regional Executive Director of the DENR/ NCR to conduct theinspection and evaluation within thirty (30) days.

On 21 April 1989, however, Solar went to the Regional Trial Court of QuezonCity, Branch 77, on petition for certiorari with preliminary injunction againstthe Board, the petition being docketed as Civil Case No. Q-89-2287.

On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two(2) grounds, i.e., that appeal and not certiorari from the questioned Order of

the Board as well as the Writ of Execution was the proper remedy, and thatthe Board's subsequent Order allowing Solar to operate temporarily hadrendered Solar's petition moot and academic.

Dissatisfied, Solar went on appeal to the Court of Appeals which, in theDecision here assailed, reversed the Order of dismissal of the trial court andremanded the case to that court for further proceedings. In addition, the Courtof Appeals declared the Writ of Execution null and void. At the same time, theCourt of Appeals said in the dispositive portion of its Decision that:

. . .. Still and all, this decision is without prejudice to whatever action theappellee [Board] may take relative to the projected 'inspection and evaluation'of appellant's [Solar's] water treatment facilities. 3

The Court of Appeals, in so ruling, held that certiorari was a proper remedysince the Orders of petitioner Board may result in great and irreparable injuryto Solar; and that while the case might be moot and academic, "larger issues"demanded that the question of due process be settled. Petitioner Board movedfor reconsideration, without success.

The Board is now before us on a Petition for Review basically arguing that:

1. its ex parte Order dated 22 September 1988 and the Writ of Execution were issued in accordance with law and were not violative of therequirements of due process; and

2. the ex parte Order and the Writ of Execution are not the proper subjects of a petition for certiorari.

The only issue before us at this time is whether or not the Court of Appealserred in reversing the trial court on the ground that Solar had been denied due

process by the Board.

Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legalauthority to issue ex parte orders to suspend the operations of anestablishment when there is prima facie evidence that such establishment isdischarging effluents or wastewater, the pollution level of which exceeds themaximum permissible standards set by the NPCC (now, the Board). Petitioner Board contends that the reports before it concerning the effluent discharges of Solar into the Tullahan-Tinejeros River provided prima facie evidence of violation by Solar of Section 5 of the 1982 Effluent Code.

Solar, on the other hand, contends that under the Board's own rules andregulations, an ex parte order may issue only if the effluents discharged posean "immediate threat to life, public health, safety or welfare, or to animal and

plant life." In the instant case, according to Solar, the inspection reports beforethe Board made no finding that Solar's wastewater discharged posed such athreat.

The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984

authorized petitioner Board to issue ex parte cease and desist orders under thefollowing circumstances:

P.D. 984, Section 7, paragraph (a), provides:

(a) Public Hearing. . . . Provided, That whenever the Commission finds primafacie evidence that the discharged sewage or wastes are of immediate threat tolife, public health, safety or welfare, or to animal or plant life, or exceeds theallowable standards set by the Commission, the Commissioner may issue anex-parte order directing the discontinuance of the same or the temporarysuspension or cessation of operation of the establishment or person generatingsuch sewage or wastes without the necessity of a prior public hearing. Thesaid ex-parte order shall be immediately executory and shall remain in forceuntil said establishment or person prevents or abates the said pollution withinthe allowable standards or modified or nullified by a competent court.(Emphasis supplied)


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We note that under the above-quoted portion of Section 7(a) of P.D. No. 984,an ex parte cease and desist order may be issued by the Board (a) whenever the wastes discharged by an establishment pose an "immediate threat to life,

public health, safety or welfare, or to animal or plant life," or (b) whenever such discharges or wastes exceed "the allowable standards set by the[NPCC]." On the one hand, it is not essential that the Board prove that an"immediate threat to life, public health, safety or welfare, or to animal or plantlife" exists before an ex parte cease and desist order may be issued. It isenough if the Board finds that the wastes discharged do exceed "the allowablestandards set by the [NPCC]." In respect of discharges of wastes as to whichallowable standards have been set by the Commission, the Board may issue an

ex parte cease and desist order when there is prima facie evidence of anestablishment exceeding such allowable standards. Where, however, theeffluents or discharges have not yet been the subject matter of allowablestandards set by the Commission, then the Board may act on an ex parte basiswhen it finds at least prima facie proof that the wastewater or materialinvolved presents an "immediate threat to life, public health, safety or welfareor to animal or plant life." Since the applicable standards set by theCommission existing at any given time may well not cover every possible or imaginable kind of effluent or waste discharge, the general standard of an"immediate threat to life, public health, safety or welfare, or to animal and

plant life" remains necessary.

Upon the other hand, the Court must assume that the extant allowablestandards have been set by the Commission or Board precisely in order toavoid or neutralize an "immediate threat to life, public health, safety or welfare, or to animal or plant life.''

Section 5 of the Effluent Regulations of 1982 4 sets out the maximum permissible levels of physical and chemical substances which effluents fromdomestic wastewater treatment plants and industrial plants" must not exceed"when discharged into bodies of water classified as Class A, B, C, D, SB andSC in accordance with the 1978 NPCC Rules and Regulations." The waters of Tullahan-Tinejeros River are classified as inland waters Class D under Section68 of the 1978 NPCC Rules and Regulations 5 which in part provides that:

Sec. 68. Water Usage and Classification. The quality of Philippine watersshall be maintained in a safe and satisfactory condition according to their bestusages. For this purpose, all water shall be classified according to thefollowing beneficial usages:

(a) Fresh Surface Water

Classification Best usagexxx xxx xxx

Class D For agriculture, irrigation, livestock

watering and industrial cooling and

processing.

xxx xxx xxx

(Emphases supplied)

The reports on the inspections carried on Solar's wastewater treatmentfacilities on 5 and 12 November 1986 and 6 September 1988 set forth thefollowing Identical finding:

a. For legal action in [view of] implementing rules and regulations of P.D. No. 984 and Section 5 of the Effluent Regulations of 1982. 6

Placing the maximum allowable standards set in Section 5 of the EffluentRegulations of 1982 alongside the findings of the November 1986 andSeptember 1988 inspection reports, we get the following results:

"Inland November September Waters 1986 1988(Class C & D 7 Report 8 Report 9Station 1 Station 1

a) Color in 100 a) Color units250 125

platinum (Apparent

cobalt Color)

b) pH 6-8.5 b) pH 9.3 8.7

c) Tempera- 40 c) Temperature

ture in C (C)

d) Phenols in 0.1 d) Phenols in

mg./1. mg.1

e) Suspended 75 e) Suspended 340 80

solids in solids in

mg./1. mg./1.

f) BOD in 80 f) BOD (5-day) 1,100152

mg./1. mg./1

g) oil/Grease 10 g) Oil/Grease

h) Detergents 5 h) Detergents 2.93

in mg./1/" mg./1. MBAS

i) Dissolved 0

oxygen, mg./1.

j) Settleable 0.4 1.5

Matter, mg./1.

k) Total Dis 800 610

solved Solids

mg./1.

l) Total Solids 1,400 690

mg./1.

m) Turbidity

NTU / ppm, SiO 3 70

The November 1986 inspections report concluded that:

Records of the Commission show that the plant under its previous owner, FineTouch Finishing Corporation, was issued a Notice of Violation on 20December 1985 directing same to cease and desist from conducting dyeingoperation until such time the waste treatment plant is already completed andoperational. The new owner Solar Textile Corporation informed theCommission of the plant acquisition thru its letter dated March 1986 (sic).

The new owner was summoned to a hearing held on 13 October 1986 basedon the adverse findings during the inspection/water sampling test conductedon 08 August 1986. As per instruction of the Legal Division a re-inspection/sampling text should be conducted first before an appropriate legalaction is instituted; hence, this inspection.

Based on the above findings, it is clear that the new owner continuouslyviolates the directive of the Commission by undertaking dyeing operationwithout completing first and operating its existing WTP. The analysis of results on water samples taken showed that the untreated wastewater from thefirm pollutes our water resources. In this connection, it is recommended thatappropriate legal action be instituted immediately against the firm. . . . 10

The September 1988 inspection report's conclusions were:


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1. The plant was undertaking dyeing, bleaching and rinsingoperations during the inspection. The combined wastewater generated fromthe said operations was estimated at about 30 gallons per minute. About 80%of the wastewater was traced directly discharged into a drainage canal leadingto the Tullahan-Tinejeros river by means of a bypass. The remaining 20% waschanneled into the plant's existing wastewater treatment plant (WTP).

2. The WTP was noted not yet fully operational- some accessorieswere not yet installed. Only the sump pit and the holding/collecting tank arefunctional but appeared seldom used. The wastewater mentioned channeledwas noted held indefinitely into the collection tank for primary treatment.There was no effluent discharge [from such collection tank].

3. A sample from the bypass wastewater was collected for laboratoryanalyses. Result of the analyses show that the bypass wastewater is polluted interms of color units, BOD and suspended solids, among others. (Please seeattached laboratory resul .) 11

From the foregoing reports, it is clear to this Court that there was at least prima facie evidence before the Board that the effluents emanating fromSolar's plant exceeded the maximum allowable levels of physical andchemical substances set by the NPCC and that accordingly there was adequate

basis supporting the ex parte cease and desist order issued by the Board. It isalso well to note that the previous owner of the plant facility Fine TouchFinishing Corporation had been issued a Notice of Violation on 20 December 1985 directing it to cease and refrain from carrying out dyeing operations untilthe water treatment plant was completed and operational. Solar, the newowner, informed the NPCC of the acquisition of the plant on March 1986.Solar was summoned by the NPCC to a hearing on 13 October 1986 based onthe results of the sampling test conducted by the NPCC on 8 August 1986.Petitioner Board refrained from issuing an ex parte cease and desist order untilafter the November 1986 and September 1988 re-inspections were conductedand the violation of applicable standards was confirmed. In other words,

petitioner Board appears to have been remarkably forbearing in its efforts toenforce the applicable standards vis-a-vis Solar. Solar, on the other hand,seemed very casual about its continued discharge of untreated, pollutiveeffluents into the Tullahan- Tinerejos River, presumably loath to spend themoney necessary to put its Wastewater Treatment Plant ("WTP") in anoperating condition.

In this connection, we note that in Technology Developers, Inc. v. Court of appeals, et al., 12 the Court very recently upheld the summary closure ordered

by the Acting Mayor of Sta. Maria, Bulacan, of a pollution-causingestablishment, after finding that the records showed that:

1. No mayor's permit had been secured. While i t is true that thematter of determining whether there is a pollution of the environment thatrequires control if not prohibition of the operation of a business is essentiallyaddressed to the then National Pollution Control Commission of the Ministryof Human Settlements, now the Environmental Management Bureau of theDepartment of Environment and Natural Resources, it must be recognized thatthe mayor of a town has as much responsibility to protect its inhabitants from

pollution, and by virtue of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriatemeasures are taken to control and/or avoid injury to the health of the residentsof the community from the emission in the operation of the business.

2. The Acting Mayor, in a letter of February l6, 1989, called theattention of petitioner to the pollution emitted by the fumes of its plant whoseoffensive odor "not only pollute the air in the locality but also affect the healthof the residents in the area," so that petitioner was ordered to stop its operationuntil further orders and it was required to bring the following:

xxx xxx xxx

(3) Region III-Department of Environment and Natural ResourcesAnti-Pollution permit. (Annex A-2, petition)

3. This action of the Acting Mayor was in response to the complaintof the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to theProvincial Governor through channels (Annex A-B, petition).. . .

4. The closure order of the Acting Mayor was issued only after aninvestigation was made by Marivic Guina who in her report of December 8,1988 observed that the fumes emitted by the plant of petitioner goes directlyto the surrounding houses and that no proper air pollution device has beeninstalled. (Annex A-9, petition)

xxx xxx xxx

6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15,1987,the permit was good only up to May 25,1988 (Annex A-12, petition).Petitioner had not exerted any effort to extend or validate its permit much lessto install any device to control the pollution and prevent any hazard to thehealth of the residents of the community."

In the instant case, the ex parte cease and desist Order was issued not by alocal government official but by the Pollution Adjudication Board, the veryagency of the Government charged with the task of determining whether the

effluents of a particular industrial establishment comply with or violateapplicable anti-pollution statutory and regulatory provisions.

Ex parte cease and desist orders are permitted by law and regulations insituations like that here presented precisely because stopping the continuousdischarge of pollutive and untreated effluents into the rivers and other inlandwaters of the Philippines cannot be made to wait until protracted litigationover the ultimate correctness or propriety of such orders has run its fullcourse, including multiple and sequential appeals such as those which Solar has taken, which of course may take several years. The relevant pollutioncontrol statute and implementing regulations were enacted and promulgated inthe exercise of that pervasive, sovereign power to protect the safety, health,and general welfare and comfort of the public, as well as the protection of

plant and animal life, commonly designated as the police power. It is aconstitutional commonplace that the ordinary requirements of procedural due

process yield to the necessities of protecting vital public interests like thosehere involved, through the exercise of police power. The Board's ex parteOrder and Writ of Execution would, of course, have compelled Solar temporarily to stop its plant operations, a state of affairs Solar could in anycase have avoided by simply absorbing the bother and burden of putting itsWTP on an operational basis. Industrial establishments are notconstitutionally entitled to reduce their capitals costs and operating expensesand to increase their profits by imposing upon the public threats and risks toits safety, health, general welfare and comfort, by disregarding therequirements of anti- pollution statutes and their implementing regulations.

It should perhaps be made clear the Court is not here saying that thecorrectness of the ex parte Order and Writ of Execution may not be contested

by Solar in a hearing before the Board itself. Where the establishment affected by an ex parte cease and desist order contests the correctness of the primafacie findings of the Board, the Board must hold a public hearing where suchestablishment would have an opportunity to controvert the basis of such ex

parte order. That such an opportunity is subsequently available is really all

that is required by the due process clause of the Constitution in situations likethat we have here. The Board's decision rendered after the public hearing maythen be tested judicially by an appeal to the Court of Appeals in accordancewith Section 7(c) of P.D. No. 984 and Section 42 of the Implementing Rulesand Regulations. A subsequent public hearing is precisely what Solar shouldhave sought instead of going to court to seek nullification of the Board's Order and Writ of Execution and instead of appealing to the Court of Appeals. It will

be recalled the at the Board in fact gave Solar authority temporarily tocontinue operations until still another inspection of its wastewater treatmentfacilities and then another analysis of effluent samples could be taken andevaluated.

Solar claims finally that the petition for certiorari was the proper remedy asthe questioned Order and Writ of Execution issued by the Board were patentnullities. Since we have concluded that the Order and Writ of Execution wereentirely within the lawful authority of petitioner Board, the trial court did noterr when it dismissed Solar's petition for certiorari. It follows that the proper

remedy was an appeal from the trial court to the Court of Appeals, as Solar did in fact appeal.

ACCORDINGLY, the Petition for Review is given DUE COURSE and theDecision of the Court of Appeals dated 7 February 1990 and its Resolutiondated 10 May 1990 in A.C.-G.R. No. SP 18821 are hereby SET ASIDE. TheOrder of petitioner Board dated 22 September 1988 and the Writ of Execution, as well as the decision of the trial court dated 21 July 1989, arehereby REINSTATED, without prejudice to the right of Solar to contest thecorrectness of the basis of the Board's Order and Writ of Execution at a publichearing before the Board.


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Laguna Lake Development Authority , petitioner , vs. CA , Manuel Jn.Serapio , Presiding Judge, Caloocan City , Macario A. Asistio, Jr ., and/or theCity Government of Caloocan , respondents.(G.R. No. 110120 | March 16, 1994 )

ROMERO, J.:

The clash between the responsibility of the City Government of Caloocan todispose off the 350 tons of garbage it collects daily and the growing concernand sensitivity to a pollution-free environment of the residents of BarangayCamarin, Tala Estate, Caloocan City where these tons of garbage are dumpedeveryday is the hub of this controversy elevated by the protagonists to the

Laguna Lake Development Authority (LLDA) for adjudication.

The instant case stemmed from an earlier petition filed with this Court byLaguna Lake Development Authority (LLDA for short) docketed as G.R.

No. 107542 against the City Government of Caloocan, et al. In the Resolutionof November 10, 1992, this Court referred G.R. No. 107542 to the Court of Appeals for appropriate disposition. Docketed therein as CA-G.R. SP

No. 29449, the Court of Appeals, in a decision 1 promulgated on January 29,1993 ruled that the LLDA has no power and authority to issue a cease anddesist order enjoining the dumping of garbage in Barangay Camarin, TalaEstate, Caloocan City. The LLDA now seeks, in this petition, a review of thedecision of the Court of Appeals.

The facts, as disclosed in the records, are undisputed.

On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of LourdesParish, Barangay Camarin, Caloocan City, filed a letter-complaint 2 with theLaguna Lake Development Authority seeking to stop the operation of the 8.6-hectare open garbage dumpsite in Tala Estate, Barangay Camarin, CaloocanCity due to its harmful effects on the health of the residents and the possibilityof pollution of the water content of the surrounding area.

On November 15, 1991, the LLDA conducted an on-site investigation,monitoring and test sampling of the leachate 3 that seeps from said dumpsiteto the nearby creek which is a tributary of the Marilao River. The LLDALegal and Technical personnel found that the City Government of Caloocanwas maintaining an open dumpsite at the Camarin area without first securingan Environmental Compliance Certificate (ECC) from the EnvironmentalManagement Bureau (EMB) of the Department of Environment and NaturalResources, as required under Presidential Decree No. 1586, 4 and clearancefrom LLDA as required under Republic Act No. 4850, 5 as amended byPresidential Decree No. 813 and Executive Order No. 927, series of 1983. 6

After a public hearing conducted on December 4, 1991, the LLDA, acting onthe complaint of Task Force Camarin Dumpsite, found that the water collectedfrom the leachate and the receiving streams could considerably affect thequality, in turn, of the receiving waters since it indicates the presence of

bacteria, other than coliform, which may have contaminated the sample duringcollection or handling. 7 On December 5, 1991, the LLDA issued a Cease andDesist Order 8 ordering the City Government of Caloocan, MetropolitanManila Authority, their contractors, and other entities, to completely halt, stopand desist from dumping any form or kind of garbage and other waste matter at the Camarin dumpsite.

The dumping operation was forthwith stopped by the City Government of Caloocan. However, sometime in August 1992 the dumping operation wasresumed after a meeting held in July 1992 among the City Government of Caloocan, the representatives of Task Force Camarin Dumpsite and LLDA atthe Office of Environmental Management Bureau Director Rodrigo U.Fuentes failed to settle the problem.

After an investigation by its team of legal and technical personnel on August14, 1992, the LLDA issued another order reiterating the December 5, 1991,order and issued an Alias Cease and Desist Order enjoining the CityGovernment of Caloocan from continuing its dumping operations at theCamarin area.

On September 25, 1992, the LLDA, with the assistance of the Philippine National Police, enforced its Alias Cease and Desist Order by prohibiting theentry of all garbage dump trucks into the Tala Estate, Camarin area beingutilized as a dumpsite.

Pending resolution of its motion for reconsideration earlier filed on September 17, 1992 with the LLDA, the City Government of Caloocan filed with theRegional Trial Court of Caloocan City an action for the declaration of nullityof the cease and desist order with prayer for the issuance of writ of injunction,

docketed as Civil Case No. C-15598. In its complaint, the City Government of Caloocan sought to be declared as the sole authority empowered to promotethe health and safety and enhance the right of the people in Caloocan City to a

balanced ecology within its territorial jurisdiction. 9

On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan City issued a temporary restraining order enjoining the LLDA fromenforcing its cease and desist order. Subsequently, the case was raffled to theRegional Trial Court, Branch 126 of Caloocan which, at the time, was

presided over by Judge Manuel Jn. Serapio of the Regional Trial Court,Branch 127, the pairing judge of the recently-retired presiding judge.

The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on theground, among others, that under Republic Act No. 3931, as amended byPresidential Decree No. 984, otherwise known as the Pollution Control Law,the cease and desist order issued by it which is the subject matter of thecomplaint is reviewable both upon the law and the facts of the case by theCourt of Appeals and not by the Regional Trial Court. 10

On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidatingCivil Case No. C-15598 with Civil Case No. C-15580, an earlier case filed bythe Task Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon.Macario Asistio." The LLDA, however, maintained during the trial that theforegoing cases, being independent of each other, should have been treatedseparately.

On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion todismiss, issued in the consolidated cases an order 11 denying LLDA's motionto dismiss and granting the issuance of a writ of preliminary injunctionenjoining the LLDA, its agent and all persons acting for and on its behalf,from enforcing or implementing its cease and desist order which prevents

plaintiff City of Caloocan from dumping garbage at the Camarin dumpsiteduring the pendency of this case and/or until further orders of the court.

On November 5, 1992, the LLDA filed a petition for certiorari, prohibitionand injunction with prayer for restraining order with the Supreme Court,docketed as G.R. No. 107542, seeking to nullify the aforesaid order datedOctober 16, 1992 issued by the Regional Trial Court, Branch 127 of CaloocanCity denying its motion to dismiss.

The Court, acting on the petition, issued a Resolution 12 on November 10,1992 referring the case to the Court of Appeals for proper disposition and atthe same time, without giving due course to the petition, required therespondents to comment on the petition and file the same with the Court of Appeals within ten (10) days from notice. In the meantime, the Court issued a

temporary restraining order, effective immediately and continuing untilfurther orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio,Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to ceaseand desist from exercising jurisdiction over the case for declaration of nullityof the cease and desist order issued by the Laguna Lake DevelopmentAuthority (LLDA); and (2) City Mayor of Caloocan and/or the CityGovernment of Caloocan to cease and desist from dumping its garbage at theTala Estate, Barangay Camarin, Caloocan City.

Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr.filed on November 12, 1992 a motion for reconsideration and/or toquash/recall the temporary restraining order and an urgent motion for reconsideration alleging that ". . . in view of the calamitous situation thatwould arise if the respondent city government fails to collect 350 tons of garbage daily for lack of dumpsite (i)t is therefore, imperative that the issue beresolved with dispatch or with sufficient leeway to allow the respondents tofind alternative solutions to this garbage problem."

On November 17, 1992, the Court issued a Resolution 13 directing the Courtof Appeals to immediately set the case for hearing for the purpose of determining whether or not the temporary restraining order issued by theCourt should be lifted and what conditions, if any, may be required if it is to

be so lifted or whether the restraining order should be maintained or convertedinto a preliminary injunction.

The Court of Appeals set the case for hearing on November 27, 1992, at 10:00in the morning at the Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the oral argument, a conference was set on December 8,1992 at 10:00 o'clock in the morning where the Mayor of Caloocan City, theGeneral Manager of LLDA, the Secretary of DENR or his duly authorizedrepresentative and the Secretary of DILG or his duly authorized representativewere required to appear.


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It was agreed at the conference that the LLDA had until December 15, 1992 tofinish its study and review of respondent's technical plan with respect to thedumping of its garbage and in the event of a rejection of respondent'stechnical plan or a failure of settlement, the parties will submit within 10 daysfrom notice their respective memoranda on the merits of the case, after whichthe petition shall be deemed submitted for resolution. 15 Notwithstandingsuch efforts, the parties failed to settle the dispute.

On April 30, 1993, the Court of Appeals promulgated its decision holdingthat: (1) the Regional Trial Court has no jurisdiction on appeal to try, hear anddecide the action for annulment of LLDA's cease and desist order, includingthe issuance of a temporary restraining order and preliminary injunction in

relation thereto, since appeal therefrom is within the exclusive and appellate jurisdiction of the Court of Appeals under Section 9, par. (3), of BatasPambansa Blg. 129; and (2) the Laguna Lake Development Authority has no

power and authority to issue a cease and desist order under its enabling law,Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order

No. 927, series of 1983.

The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary injunction issued in the said case was set aside; the cease anddesist order of LLDA was likewise set aside and the temporary restrainingorder enjoining the City Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate,Barangay Camarin, Caloocan City was lifted, subject, however, to thecondition that any future dumping of garbage in said area, shall be inconformity with the procedure and protective works contained in the proposalattached to the records of this case and found on pages 152-160 of the Rollo,which was thereby adopted by reference and made an integral part of thedecision, until the corresponding restraining and/or injunctive relief is granted

by the proper Court upon LLDA's institution of the necessary legal proceedings.

Hence, the Laguna Lake Development Authority filed the instant petition for review on certiorari, now docketed as G.R. No. 110120, with prayer that thetemporary restraining order lifted by the Court of Appeals be re-issued untilafter final determination by this Court of the issue on the proper interpretationof the powers and authority of the LLDA under its enabling law.

On July, 19, 1993, the Court issued a temporary restraining order 16 enjoiningthe City Mayor of Caloocan and/or the City Government of Caloocan to ceaseand desist from dumping its garbage at the Tala Estate, Barangay Camarin,Caloocan City, effective as of this date and containing until otherwise ordered

by the Court.

It is significant to note that while both parties in this case agree on the need to protect the environment and to maintain the ecological balance of thesurrounding areas of the Camarin open dumpsite, the question as to whichagency can lawfully exercise jurisdiction over the matter remains highly opento question.

The City Government of Caloocan claims that it is within its power, as a localgovernment unit, pursuant to the general welfare provision of the LocalGovernment Code, 17 to determine the effects of the operation of thedumpsite on the ecological balance and to see that such balance is maintained.On the basis of said contention, it questioned, from the inception of thedispute before the Regional Trial Court of Caloocan City, the power andauthority of the LLDA to issue a cease and desist order enjoining the dumpingof garbage in the Barangay Camarin over which the City Government of Caloocan has territorial jurisdiction.

The Court of Appeals sustained the position of the City of Caloocan on the

theory that Section 7 of Presidential Decree No. 984, otherwise known as thePollution Control law, authorizing the defunct National Pollution ControlCommission to issue an ex-parte cease and desist order was not incorporatedin Presidential Decree No. 813 nor in Executive Order No. 927, series of 1983. The Court of Appeals ruled that under Section 4, par. (d), of RepublicAct No. 4850, as amended, the LLDA is instead required "to institute thenecessary legal proceeding against any person who shall commence toimplement or continue implementation of any project, plan or program withinthe Laguna de Bay region without previous clearance from the Authority."

The LLDA now assails, in this partition for review, the abovementionedruling of the Court of Appeals, contending that, as an administrative agencywhich was granted regulatory and adjudicatory powers and functions byRepublic Act No. 4850 and its amendatory laws, Presidential Decree No. 813and Executive Order No. 927, series of 1983, it is invested with the power andauthority to issue a cease and desist order pursuant to Section 4 par. (c), (d),

(e), (f) and (g) of Executive Order No. 927 series of 1983 which provides,thus:

Sec. 4. Additional Powers and Functions. The authority shall have thefollowing powers and functions:

xxx xxx xxx

(c) Issue orders or decisions to compel compliance with the provisionsof this Executive Order and its implementing rules and regulations only after

proper notice and hearing.

(d) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and the time within which suchdiscontinuance must be accomplished.

(e) Issue, renew, or deny permits, under such conditions as it maydetermine to be reasonable, for the prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the installation or operation of sewage works and industrial disposal system or parts thereof.

(f) After due notice and hearing, the Authority may also revoke,suspend or modify any permit issued under this Order whenever the same isnecessary to prevent or abate pollution.

(g) Deputize in writing or request assistance of appropriategovernment agencies or instrumentalities for the purpose of enforcing thisExecutive Order and its implementing rules and regulations and the orders anddecisions of the Authority.

The LLDA claims that the appellate court deliberately suppressed and totallydisregarded the above provisions of Executive Order No. 927, series of 1983,which granted administrative quasi-judicial functions to LLDA on pollutionabatement cases.

In light of the relevant environmental protection laws cited which areapplicable in this case, and the corresponding overlapping jurisdiction of government agencies implementing these laws, the resolution of the issue of whether or not the LLDA has the authority and power to issue an order which,in its nature and effect was injunctive, necessarily requires a determination of the threshold question: Does the Laguna Lake Development Authority, under its Charter and its amendatory laws, have the authority to entertain thecomplaint against the dumping of garbage in the open dumpsite in BarangayCamarin authorized by the City Government of Caloocan which is allegedlyendangering the health, safety, and welfare of the residents therein and the

sanitation and quality of the water in the area brought about by exposure to pollution caused by such open garbage dumpsite?

The matter of determining whether there is such pollution of the environmentthat requires control, if not prohibition, of the operation of a businessestablishment is essentially addressed to the Environmental ManagementBureau (EMB) of the DENR which, by virtue of Section 16 of ExecutiveOrder No. 192, series of 1987, 18 has assumed the powers and functions of the defunct National Pollution Control Commission created under RepublicAct No. 3931. Under said Executive Order, a Pollution Adjudication Board(PAB) under the Office of the DENR Secretary now assumes the powers andfunctions of the National Pollution Control Commission with respect toadjudication of pollution cases. 19

As a general rule, the adjudication of pollution cases generally pertains to thePollution Adjudication Board (PAB), except in cases where the special law

provides for another forum. It must be recognized in this regard that the

LLDA, as a specialized administrative agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws to carry out and makeeffective the declared national policy 20 of promoting and accelerating thedevelopment and balanced growth of the Laguna Lake area and thesurrounding provinces of Rizal and Laguna and the cities of San Pablo,Manila, Pasay, Quezon and Caloocan 21 with due regard and adequate

provisions for environmental management and control, preservation of thequality of human life and ecological systems, and the prevention of undueecological disturbances, deterioration and pollution. Under such a broad grantand power and authority, the LLDA, by virtue of its special charter, obviouslyhas the responsibility to protect the inhabitants of the Laguna Lake regionfrom the deleterious effects of pollutants emanating from the discharge of wastes from the surrounding areas. In carrying out the aforementioneddeclared policy, the LLDA is mandated, among others, to pass upon andapprove or disapprove all plans, programs, and projects proposed by localgovernment offices/agencies within the region, public corporations, and


9/52

private persons or enterprises where such plans, programs and/or projects arerelated to those of the LLDA for the development of the region. 22

In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed itsletter-complaint before the LLDA, the latter's jurisdiction under its charter was validly invoked by complainant on the basis of its allegation that the opendumpsite project of the City Government of Caloocan in Barangay Camarinwas undertaken without a clearance from the LLDA, as required under Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813and Executive Order No. 927. While there is also an allegation that the said

project was without an Environmental Compliance Certificate from the

Environmental Management Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA over this case was recognized by the EnvironmentalManagement Bureau of the DENR when the latter acted as intermediary at themeeting among the representatives of the City Government of Caloocan, Task Force Camarin Dumpsite and LLDA sometime in July 1992 to discuss the

possibility of re-opening the open dumpsite.

Having thus resolved the threshold question, the inquiry then narrows down tothe following issue: Does the LLDA have the power and authority to issue a"cease and desist" order under Republic Act No. 4850 and its amendatorylaws, on the basis of the facts presented in this case, enjoining the dumping of garbage in Tala Estate, Barangay Camarin, Caloocan City.

The irresistible answer is in the affirmative.

The cease and desist order issued by the LLDA requiring the CityGovernment of Caloocan to stop dumping its garbage in the Camarin opendumpsite found by the LLDA to have been done in violation of Republic Act

No. 4850, as amended, and other relevant environment laws, 23 cannot bestamped as an unauthorized exercise by the LLDA of injunctive powers. Byits express terms, Republic Act No. 4850, as amended by P.D. No. 813 andExecutive Order No. 927, series of 1983, authorizes the LLDA to "make, alter or modify order requiring the discontinuance or pollution." 24 (Emphasissupplied) Section 4, par. (d) explicitly authorizes the LLDA to make whatever order may be necessary in the exercise of its jurisdiction.

To be sure, the LLDA was not expressly conferred the power "to issue and ex- parte cease and desist order" in a language, as suggested by the CityGovernment of Caloocan, similar to the express grant to the defunct NationalPollution Control Commission under Section 7 of P.D. No. 984 which,admittedly was not reproduced in P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a mistake to draw therefrom the conclusion that

there is a denial of the power to issue the order in question when the power "tomake, alter or modify orders requiring the discontinuance of pollution" isexpressly and clearly bestowed upon the LLDA by Executive Order No. 927,series of 1983.

Assuming arguendo that the authority to issue a "cease and desist order" werenot expressly conferred by law, there is jurisprudence enough to the effect thatthe rule granting such authority need not necessarily be express. 25 While it isa fundamental rule that an administrative agency has only such powers as areexpressly granted to it by law, it is likewise a settled rule that anadministrative agency has also such powers as are necessarily implied in theexercise of its express powers. 26 In the exercise, therefore, of its express

powers under its charter as a regulatory and quasi-judicial body with respectto pollution cases in the Laguna Lake region, the authority of the LLDA toissue a "cease and desist order" is, perforce, implied. Otherwise, it may well

be reduced to a "toothless" paper agency.

In this connection, it must be noted that in Pollution Adjudication Board v.Court of Appeals, et al., 27 the Court ruled that the Pollution AdjudicationBoard (PAB) has the power to issue an ex-parte cease and desist order whenthere is prima facie evidence of an establishment exceeding the allowablestandards set by the anti-pollution laws of the country. The ponente, AssociateJustice Florentino P. Feliciano, declared:

Ex parte cease and desist orders are permitted by law and regulations insituations like that here presented precisely because stopping the continuousdischarge of pollutive and untreated effluents into the rivers and other inlandwaters of the Philippines cannot be made to wait until protracted litigationover the ultimate correctness or propriety of such orders has run its fullcourse, including multiple and sequential appeals such as those which Solar has taken, which of course may take several years. The relevant pollutioncontrol statute and implementing regulations were enacted and promulgated inthe exercise of that pervasive, sovereign power to protect the safety, health,

and general welfare and comfort of the public, as well as the protection of plant and animal life, commonly designated as the police power. It is aconstitutional commonplace that the ordinary requirements of procedural due

process yield to the necessities of protecting vital public interests like thosehere involved, through the exercise of police power. . . .

The immediate response to the demands of "the necessities of protecting vital public interests" gives vitality to the statement on ecology embodied in theDeclaration of Principles and State Policies or the 1987 Constitution. ArticleII, Section 16 which provides:

The State shall protect and advance the right of the people to a balanced and

healthful ecology in accord with the rhythm and harmony of nature.

As a constitutionally guaranteed right of every person, it carries the correlativeduty of non-impairment. This is but in consonance with the declared policy of the state "to protect and promote the right to health of the people and instillhealth consciousness among them." 28 It is to be borne in mind that thePhilippines is party to the Universal Declaration of Human Rights and theAlma Conference Declaration of 1978 which recognize health as afundamental human right. 29

The issuance, therefore, of the cease and desist order by the LLDA, as a practical matter of procedure under the circumstances of the case, is a proper exercise of its power and authority under its charter and its amendatory laws.Had the cease and desist order issued by the LLDA been complied with by theCity Government of Caloocan as it did in the first instance, no further legalsteps would have been necessary.

The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon the LLDA the means of directly enforcing such orders, has

provided under its Section 4 (d) the power to institute "necessary legal proceeding against any person who shall commence to implement or continueimplementation of any project, plan or program within the Laguna de Bayregion without previous clearance from the LLDA."

Clearly, said provision was designed to invest the LLDA with sufficiently broad powers in the regulation of all projects initiated in the Laguna Lakeregion, whether by the government or the private sector, insofar as theimplementation of these projects is concerned. It was meant to deal with caseswhich might possibly arise where decisions or orders issued pursuant to theexercise of such broad powers may not be obeyed, resulting in the thwartingof its laudabe objective. To meet such contingencies, then the writs of mandamus and injunction which are beyond the power of the LLDA to issue,may be sought from the proper courts.

Insofar as the implementation of relevant anti-pollution laws in the LagunaLake region and its surrounding provinces, cities and towns are concerned, theCourt will not dwell further on the related issues raised which are moreappropriately addressed to an administrative agency with the specialknowledge and expertise of the LLDA.

WHEREFORE, the petition is GRANTED. The temporary restraining order issued by the Court on July 19, 1993 enjoining the City Mayor of Caloocanand/or the City Government of Caloocan from dumping their garbage at theTala Estate, Barangay Camarin, Caloocan City is hereby made permanent.


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Republic of the Philippines , represented by the Pollution AdjudicationBoard , petitioner , vs. Marcopper Mining Corporation , respondent .(G.R. No. 137174 | July 10, 2000 )

GONZAGA-REYES, J.:

In this petition for review on certiorari, petitioner REPUBLIC OF THEPHILIPPINES through the Pollution Adjudication Board of the Department of Environment and Natural Resources seeks to annul the Decision[1] of theCourt of Appeals[2] in CA-G.R. SP No. 44656 setting aside the Order[3] of the Pollution Adjudication Board[4] in DENR-PAB Case No. 04-00597-96; aswell as the Resolution[5] denying reconsideration of said Decision.

The following antecedent facts are undisputed:

Respondent Marcopper Mining Corporation (MMC) was issued a temporary permit to operate a tailings[6] sea disposal system under TPO No. POW-85-454-EJ for the period October 31, 1985 to October 21, 1986. Before itexpired, MMC filed an application for the renewal thereof with the NationalPollution Control Commission (NPCC). On September 20, 1986, MMCreceived a telegraphic order from the NPCC directing the former to(i)mmediately cease and desist from discharging mine tailings into CalancanBay. The directive was brought about through the efforts of certain religiousgroups which had been protesting MMCs tailings sea disposal system. MMCrequested the NPCC to refrain from implementing the aforesaid directive untilits adoption of an alternative tailings disposal system. The NPCC grantedMMCs request and called a conference to discuss possible alternativedisposal systems. Consequently, an Environmental Technical Committee,composed of representatives from the NPCC, the Bureau of Mines and Geo-Sciences, and MMC was created to study the feasibility of various tailingsdisposal systems that may be appropriate for utilization by MMC and tosubmit its findings and recommendations thereon.

Meanwhile, after the expiration of MMCs TPO No. POW-85-454-EJ onOctober 21, 1986, the NPCC issued to MMC a new temporary permit, TPO

No. POW-86-454-EJ dated November 11, 1986, to expire on February 10,1987, with the condition that [t]he tailings disposal system shall betransferred to San Antonio Pond within two (2) months from the date of this

permit. MMC moved for the deletion of the condition stating that it neededto develop and mine the ore deposits underneath the San Antonio pond for it to continue its mining operations. In a letter-manifestation dated February5, 1987, MMC requested the NPCC for an extension of TPO No. POW-86-454-EJ and the indefinite suspension of the condition in said permit until suchtime that the NPCC shall have finally resolved the NPCC case entitled Msgr.Rolly Oliverio, et al. vs. Marcopper Mining Corporation.

In the meantime, the NPCC was abolished by Executive Order No. 192[7]dated June 10, 1987, and its powers and functions were integrated into theEnvironmental Management Bureau and into the Pollution AdjudicationBoard (PAB).[8]

On April 11, 1988, the Secretary of Environment and Natural Resources, inhis capacity as Chairman of the PAB, issued an Order directing MMC tocease and desist from discharging mine tailings into Calancan Bay. Theorder reads:

The Temporary Permit to Operate issued to Marcopper Mining Corporationexpired on February 10, 1987.

Section 96 of the National Pollution Control Commission (NPCC) Rules andRegulations, which were adopted by the Board, provides that in no case can a

permit be valid for more than one (1) year.

Records show that Marcopper Mining Corporation has not filed anyapplication for renewal of the permit.

Marcopper Mining Corporation is hereby ordered to cease and desist fromdischarging mine tailings into Calancan Bay immediately upon receipt of thisOrder.

SO ORDERED.[9]

Immediately thereafter, the DENR Undersecretary for Environment andResearch issued a telegraphic order dated April 15, 1988, enjoining immediatecompliance by MMC of the cease and desist order of April 11, 1988.

MMC appealed the above orders of April 11, 1988 and April 15, 1988 to theOffice of the President, docketed as O.P. Case No. 3802. In an Order dated

May 2, 1988, the Office of the President denied MMCs requests for issuanceof restraining orders against the orders of the PAB. Consequently, MMC filedan Urgent Ex-Parte Partial Motion for Reconsideration dated May 6, 1988,seeking the reconsideration of the above Order. In an Order dated May 13,1988, the Office of the President granted the above partial motion for reconsideration, thus:

WHEREFORE, the instant Urgent Ex-Parte Motion for Reconsideration ishereby GRANTED, and the Order of this Office, dated May 2, 1988, is herebyset aside insofar as it denies respondent-appellants requests for issuance of restraining orders.

Accordingly, the Pollution Adjudication Board, its agents, deputies or representatives are hereby enjoined from enforcing its cease and desist order of April 15, 1988 pending resolution by this Office of respondent-appellantsappeal from said orders.

It is further directed that the status quo obtaining prior to the issuance of saidcease and desist order be maintained until further orders from this Office.

It is understood, however, that during the efficacy of this restraining order,respondent-appellant shall immediately undertake, at a cost of not less thanP30,000.00 a day, the building of artificial reefs and planting of sea grass,mangroves and vegetation on the causeway of Calancan Bay under thesupervision of the Pollution Adjudication Board and subject to suchguidelines as the Board may impose.

SO ORDERED.[10]

In line with the directive from the Office of the President, the Calancan BayRehabilitation Project (CBRP) was created, and MMC remitted the amount of P30,000.00 a day, starting from May 13, 1988 to the Ecology Trust Fund(ETF) thereof. However, on June 30, 1991, MMC stopped discharging itstailings in the Bay, hence, it likewise ceased from making further deposits tothe ETF.

From the issuance of the Order on May 13, 1988 until the cessation of thetailings disposal on June 30, 1991, MMC made its contribution to the ETF inthe total amount of Thirty-Two Million Nine Hundred and Seventy-FiveThousand Pesos (P32,975,000.00). Thereafter, MMC filed a Motion datedJuly 9, 1991 manifesting that it would discontinue its contributions/depositsto the ETF since it had stopped dumping tailings in the Bay. MMC prayedthat the Order issued by the Office of the President on May 13, 1988 be lifted.

On February 5, 1993, the Office of the President rendered a decision in O.P.

Case No. 3802 dismissing the appeal; affirming the cease and desist Order issued by the PAB; and lifting the TRO dated May 13, 1988. The Office of the President resolved the appeal in this wise:

This brings to the fore the primordial issue of whether or not the Secretaryof Environment and Natural Resources gravely erred in declaring the TPO No.POW-86-454-EJ issued to respondent-appellant MMC expired on February10, 1987, and in ordering the latter to cease and desist from discharging minetailings into Calancan Bay.

Respondent-appellant argues that the cease and desist orders were issued bythe PAB ex-parte, in violation of its procedural and substantive rights

provided for under Section 7 (a) of P.D. No. 984 requiring a public hearing before any order or decision for the discontinuance of discharge of a sewageor industrial wastes into the water, air or land could be issued by the PAB.

We are not persuaded.

Section 7(a) of P.D. No. 984, reads in part:

Sec. 7(a) Public Hearing. Public hearing shall be conducted by theCommissioner, Deputy Commissioner or any senior official duly designated

by the Commissioner prior to issuance or promulgation of any order or decision by the Commissioner requiring the discontinuance of discharge of sewage, industrial wastes and other wastes into the water, air or land resourcesof the Philippines as provided in the Decree: provided, that whenever theCommission finds a prima facie evidence that the discharged sewage or wastes are of immediate threat to life, public health, safety or welfare, or toanimal or plant life, or exceeds the allowable standards set by theCommission, the Commissioner may issue an ex-parte order directing thediscontinuance of the same or the temporary suspension or cessation of operation of the establishment or person generating such sewage or wastes


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without the necessity of a prior public hearing. x x x . (underscoringsupplied).

Clearly then, it is self-indulgent nonsense to assume that the DENR Secretary,acting as PAB Chairman, is absolutely without authority to issue an ex-parteorder requiring the discontinuance of discharge of sewage or other industrialwastes without public hearing. As can be gleaned from the afroequoted

proviso, this authority to issue an ex-parte order suspending the discharge of industrial wastes is postulated upon his finding of prima-facie evidence of animminent threat to life, public health, safety or welfare, to animal or plant lifeor exceeds the allowable standards set by the Commission.[11]

In a letter dated January 22, 1997[12], Municipal Mayor Wilfredo A. Red of Sta. Cruz, Marinduque informed the PAB that MMC stopped remitting theamount of 30,000.00 per day as of July 1, 1991 to the ETF of the CBRP.This letter-complaint of Mayor Red was docketed as DENR-PAB Case No.04-00597-96, for violation of P.D. 984[13] and its implementing Rules andRegulations.

In an order dated April 23, 1997, the PAB ruled that the obligation of MMC todeposit P30,000.00 per day to the ETF of the CBRP subsists, as provided for in the Order of the Office of the President dated May 13, 1988, during theefficacy of said order restraining the PAB from enforcing its cease and desistorder against MMC. Since the Order was lifted only on February 5, 1993,the obligation of MMC to remit was likewise extinguished only on said dateand not earlier as contended by MMC from the time it ceased dumpingtailings into the Bay on July 1, 1991. We quote in part:

The issue before this Board is whether Marcopper Mining Corporation isstill obliged to remit the amount of P30,000.00 to the CBRP. The answer bythe Order from the Office of the President dated 13 May 1988, which statesthat the obligation on the part of Marcopper Mining to pay the amount of P30,000.00 per day for the rehabilitation of Calancan Bay is binding onlyduring the efficacy of the said Order.

The record further shows that on 05 February 1993, the Office of the Presidentlifted its Order dated 13 May 1988. This means that as of the date of thelifting, Marcopper Mining Corporation no longer had any obligation to remitthe amount of P30,000.00 to the CBRP. Thus, Marcoppers obligation onlyruns from 13 May 1988 to 05 February 1993. Beyond the cut-off date of 05February 1993, Marcopper is no longer obligated to remit the amount of P30,000.00 per day to the CBRP.

It does not matter whether Marcopper was no longer dumping its tail miningsinto the sea even before the cut-off date of 05 February 1993. The obligation

of Marcopper to pay the amount of P30,000.00 to the CBRP arises from theOffice of the President Order dated 13 May 1988, not from it dumping of mine tailings.

WHEREFORE, Marcopper Mining Corporation is hereby ordered to pay theCBRP the amount of P30,000.00 per day, computed from the date Marcopper Mining Corporation stopped paying on 01 July 1991, up to the formal liftingof the subject Order from the Office of the President on 05 February 1993.

SO ORDERED.[14]

MMC assailed the aforequoted Order dated April 23, 1997 of the PAB as nulland void for having been issued without jurisdiction or with grave abuse of discretion in a petition for Certiorari and Prohibition (with prayer for temporary restraining order and preliminary injunction) before the Court of Appeals which was docketed as CA-G.R. No. SP-44656. In a Resolutiondated July 15, 1997, the Court of Appeals required the PAB and its members

to comment on said petition.

On November 19, 1997, the Office of the Solicitor General, on behalf of thePAB and its members, filed with the Court of Appeals the required comment.

On September 15, 1997, for purposes of determining whether or not to grantMMCs prayer for a temporary restraining order and preliminary injunction,the Court of Appeals conducted a hearing where counsel for the parties wereheard on oral arguments.

In a Resolution dated September 19, 1997, the Court of Appeals issued a writof preliminary injunction, conditioned upon the filing of a bond by MMC inthe amount of P500,000.00 enjoining the PAB and its members to cease anddesist from enforcing the assailed Order dated April 23, 1997, until it hadmade a full determination on the merits of the case.

On January 7, 1998, the Court of Appeals promulgated a Decision in CA-G.R.SP No. 44656, the dispositive portion of which reads:

In view of the foregoing, the instant petition is hereby GRANTED and,accordingly, the questioned Order of respondent Pollution Adjudication Boarddated 23 April 1997 is here

envi case bulk

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